2016 (2) TMI 53 - AT - Customs

Onus to prove goods are smuggled or not - licit or illicit import of dry battery cells & Calculators - Appellant contended that even if some of the goods bear a foreign country name the same does not make them smuggled goods as all the seized goods are freely available on the roadsides in India. That once the goods are not liable to confiscation then Revenue has no authority to retain the seized good, & were required to be released to the owner or the appellant who was the custodian of the goods during transportation. Held that - As these goods are not notified under Sec 123 of the Customs Act 1962, therefore, the onus is on the Revenue to establish that these goods were smuggled into India, Except for the goods mentioned at Sr No. 3,4,&5 (Calculators) all other goods of foreign origin or believed to be of foreign origin are not liable to confiscation as correctly held by the first appellate authority. Under the existing factual matrix it can not be upheld that the goods of Indian origin were used for concealing contrabed goods and are not considered as liable to confiscation under Sec 119 of the customs Act 1962. However calculators of foreign origin, mentioned at Sr. No. 3,4, & 5 of the inventory dt 23/8/10, are liable to confiscation in view of Sec 123 of the customs Act 1962. As these is no absolute prohibition on importation of these goods, therefore, these calculators can not be confiscated absolutely. Appellant is thus required to be given an option to redeem the same on imposition of appropriate redemption fine under Sec 125 of the customs Act 1962 by the Adjudicating authority. Decided partly in favor of revenue.

Summary

Issues involved:
- Appeal against OIA No. 12/SLG/2012 passed by Commissioner (Appeals-IV) Kolkata setting aside penalty/confiscation and directing release of goods/sale proceeds.

Analysis:
1. Onus of proving goods not smuggled:
- Revenue argued that certain goods were notified under Sec. 123 of the Customs Act 1962 and the owner/custodian should prove they are not smuggled, which was ignored by the first appellate authority.
- Appellant argued that the belief that goods were of foreign origin does not prove they were smuggled, especially as similar goods are freely available in India.
- Tribunal observed that only calculators of foreign origin were notified, and the onus was not discharged for proving they were not smuggled.

2. Ownership of seized goods:
- Revenue claimed that no documents of licit import were available for certain foreign-origin goods.
- Appellant argued that some parties claimed ownership of seized goods, but their claims were rejected by lower authorities.
- Tribunal found that goods of foreign origin, other than the calculators, were not liable for confiscation.

3. Confiscation and release of goods:
- Calculators of foreign origin were found liable for confiscation under Sec 123 of the Customs Act 1962, but could be redeemed upon payment of a redemption fine.
- Other goods, not liable for confiscation, were to be returned to the owner/custodian, which in this case was the appellant.
- Tribunal upheld the first appellate authority's decision, except for the modification regarding the calculators.

4. Final decision:
- The appeal by the Revenue was disposed of, with the bench not finding it necessary to interfere with the first appellate authority's orders, except for the specific modification mentioned.
- The goods, except the calculators, were to be returned to the appellant, and the matter regarding the calculators was remanded to the adjudicating authority for imposing a redemption fine.

This detailed analysis covers the key issues raised in the legal judgment, outlining the arguments presented by both sides and the Tribunal's findings and decisions on each issue.